State of Missouri, Respondent, v. Will Murray, Appellant.

St. Louis Court of Appeals, January 21, 1890.

Criminal Law: carrying concealed
weapons. The carrying of a deadly weapon, concealed on the person, is not
necessarily criminal; if the weapon is carried not for use as such, but merely
for the purposes of sport, the act is not criminal.

Appeal from the Greene Circuit Court.--Hon. W. B. Hubbard, Judge.

Reversed and remanded.

Goode & Cravens and James R.
Vaughan, for the appellant.

The statute does not denounce the mere putting of a
pistol into one's pocket for a single moment. It is the pernicious habit or
purpose of going about secretly armed that the law condemns. The crime of
carrying concealed weapons implies some continuity of purpose and action. In
Arkansas, under a statute similar to ours, it has been held that there are three
essential elements in the offense: (1) The implement must be placed about the
person, and carried around in some way, to be at all times accessible. If it is
merely, and in good faith, being transported to be repaired or given to another,
or for purposes of trade, or any other object, save to be used in fight, it
cannot be said to be worn. (2) It must be concealed--that is, hidden from
general view, so as to put others off their guard. (3) And, lastly, it must be
carried as a weapon; that is, for the purpose of having it convenient for use in
fight. Carr v. State, 34 Ark. 448; State v. Gilbert, 87 N.C. 527; State v. Larkin, 24 Mo. App. 410.(p.128)

John A. Patterson, for the respondent.

Biggs, J., delivered the
opinion of the court.

The defendant was indicted, tried and convicted, in the circuit court
of Greene county for carrying concealed upon his person a dangerous and deadly
weapon. The evidence on the part of the state tended to prove that the defendant
did carry a revolving pistol concealed upon his person.

The defendant introduced evidence tending to prove that, on the day
he was charged with carrying the revolver, he and three other young men, who
resided in Springfield, went on a pleasure trip to James river, distant seven or
eight miles from the city; that he took the pistol for the purpose of shooting
at a mark, and with no intention or thought of using it as a weapon; and that,
in going to and coming from the river, the pistol was placed either on the seat
or bottom of the vehicle in which they were riding. When the party got to the
James river, they fell in company with another crowd of young men, and the
pistol was taken out of the buggy and used by several members of both parties in
shooting at a mark. It was during this time that one of the state's witnesses
testified that he saw the defendant put the pistol in his hip pocket, and the
court, upon the testimony of this witness, found the defendant guilty. The cause
was submitted to the court without a jury.

There is substantial evidence to sustain the judgment, and the
defendant's conviction must be upheld, unless it appears, from the instructions
given and refused, that the court tried the case upon a misconception of the
law, or excluded from its consideration evidence tending to establish a valid
defense.

At the instance of the state, the court gave the following
instruction or declaration of law: "The court declares the law to be, if the
defendant did in (p.129)the county of Greene,
and state of Missouri, on or about the twelfth day of May, 1888, and within one
year next before the finding of the indictment, herein, then and there
unlawfully carry concealed upon and about his person a dangerous and deadly
weapon, to-wit, a pistol, then the defendant is guilty as charged in the
indictment."

The defendant asked the court to give the following declarations of
law, which the court refused to do:

"1. That, in order to constitute the offense of
carrying concealed weapons, the intent with which the implement is carried is
material, and if in this case the court finds that the pistol was not carried
for use as a weapon, in the event occasion required, then the court will find
the defendant not guilty.

"2. To conceal a weapon means something more than carrying or the
mere act of having it where it may not be seen. It implies an assent of the
mind and a purpose to carry it so that it may not be seen.

"3. In order to constitute the carrying of a weapon concealed,
under the laws of the state, it must be carried as a weapon--that is, for the
purpose of using it as such--if occasion required.

"4. In order to constitute the offense with which the defendant
stands charged, the implement must be carried to be at all times accessible;
that carrying does not mean a mere temporary or casual act of possession or
holding of the implement; but implies a continuity of action and purpose for
that particular occasion under investigation; must be carried for the purpose
of being used as a weapon, an implement of offense or defense, and must be
concealed from general view so as to put others off their
guard."

The court refused all of said instructions, to
which action the defendant excepted.

It is quite apparent that, in the opinion of the trial judge, the
evidence introduced and relied on by the (p.130)defendant to explain the circumstances under which he
had possession of the pistol, and his purpose and intention in carrying it, had
no tendency to establish a defense to the charge contained in the indictment; in
other words, the intent with which the weapon was carried could cut no figure in
the case, and should not be considered.

This court has placed quite a different interpretation on the
statute. In the case of State v. Larkin, 24 Mo. App. 410, this
court, speaking through Judge Rombauer, said: "If, in
the case at bar, the defendant carried the pistol as a mere article of
merchandise, without any intention, fairly inferable, that he intended to
use it as a weapon, prior to his arrest, he was entitled to his discharge."
Also in the case of State v. Roberts (ante, p. 47), we
had occasion again to construe this statute. In disposing of this question, the
court said: "That a pistol was only a deadly weapon when carried for
use, and all that can be said is that, prima facie, the fact
of its being carried is evidence that it is carried for use; but the defendant
is at liberty to rebut this inference by showing that he carried it as
a mere article of merchandise, or, as in this case, as a mere messenger for
transmission to a third party without any intention to use it as a
weapon."

Upon the authority of these cases we must conclude that the court
disposed of the present case upon a wrong theory. The action of the court in
reference to the instructions clearly implies that the defendant's testimony was
not discarded as untrue, but was treated as irrelevant. The main and sole object
of the statute was to break down the pernicious and dangerous habit of carrying
concealed weapons, to be used as weapons, if it should become
necessary, and it was not, in our opinion, the intention of the legislature to
subject the citizen to punishment for carrying deadly of dangerous weapons
concealed on his person, regardless of circumstances or his intent or
purpose in carrying them.(p.131)

In the interpretation of statutes courts should not "stick in the
bark."

If the defendant took the pistol with him for the purpose of
affording innocent sport for the party, and with no intention to use it as a
weapon, and it was carried in a manner stated by his witnesses, then he was
entitled to his discharge, notwithstanding that he may have, during the time,
placed the pistol in one of his pockets, so that it could not be seen.

It follows that the judgment of the circuit court will be reversed
and the cause remanded. All the judges concur.